Police Can't Demand You Reveal Your Phone Passcode and Then Tell a Jury You Refused (eff.org) 75
EFF: The Utah Supreme Court is the latest stop in EFF's roving campaign to establish your Fifth Amendment right to refuse to provide your password to law enforcement. Yesterday, along with the ACLU, we filed an amicus brief in State v. Valdez, arguing that the constitutional privilege against self-incrimination prevents the police from forcing suspects to reveal the contents of their minds. That includes revealing a memorized passcode or directly entering the passcode to unlock a device.
In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. During his arrest, police found a cell phone in Valdez's pocket that they wanted to search for evidence that he set up the meeting, but Valdez refused to tell them the passcode. Unlike many other cases raising these issues, however, the police didn't bother seeking a court order to compel Valdez to reveal his passcode. Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant's Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.
In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. During his arrest, police found a cell phone in Valdez's pocket that they wanted to search for evidence that he set up the meeting, but Valdez refused to tell them the passcode. Unlike many other cases raising these issues, however, the police didn't bother seeking a court order to compel Valdez to reveal his passcode. Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant's Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.
That headline triggers me (Score:4, Informative)
The police can very well do that... A judge just decided that such behavior will not get them anywhere in his court.
The next level will have to decide whether they agree with this judge... I don't know if that will be the last levl of judges to appeal to. If it is, THAT ruling will determine how the police would fare with such behavior in court.
If it isn't, the saga continues.
This was a won battle. The war is still on.
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If this is a Federal constitutional question then this can be appealed all the way up to SCOTUS. Of course which way a conservative-leaning SCOTUS will rule is a matter for some speculation.
Some state constitutions may offer broader protections of rights than the Federal constitution. Indeed many state constitutions contain Bills of Rights that parallel the Federal one. If this is a question of rights under the Utah state constitution then the Utah State Supreme Court (or whatever the highest court is at
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Of course which way a conservative-leaning SCOTUS will rule is a matter for some speculation.
You may be surprised. Conservatives care a lot more about your rights than do the far left.
The far left are extremists, same as the far right. They are not a valid comparison. If you compare "conservatives", then, in order not to be a quasi-liar, you have to compare them with "the left" (which pretty much everybody outside of the US would call "moderate conservatives").
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Nobody outside of the US would call the left "moderate conservatives". Not even close. Or are you talking about the far left having moved the left goal post so far to the left that those who were slightly left would not fall right of center and be called "moderate conservatives"?
At the end of the day, center is center. Leftist ideas are leftist anywhere in the world, as are conservative ideas. Nobody would consider US leftists conservative by any means.
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Currently all conservatives care about is installing themselves as a one-party state.
They 'care' about your rights in the same way that the wolf 'cares' about the sheep.
The 'far left' barely exist. The right are on the verge of dismantling democracy.
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Your're correct, of course.
The one thing is that if the judge says it can't be introduced the implication is that it's poison fruit on a Constitutional basis so one could, in his court, file a civil rights action if the police proceed anyway.
Those are rarely decided for liberty though, especially since SCOTUS hasn't dismantled their foolish 'qualified immunity' imaginary power.
"But there's a chance."
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Cops, the biggest organized gang in the country. Protected by unions with deep pockets and government immunity they operate as they please.
Re:That headline triggers me (Score:4, Informative)
Perfect example here. https://www.politico.com/state... [politico.com]
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I also believe you are against guns and the 2A rights for citizens to be armed and defend themselves.
So, I would pose the question to you...if you are getting broken into while you are home...who are you going to call, and how would yo
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I tend to think you wish to go much further and almost are against the police in principal....am I close?
Not in the least. I'm perfectly fine with police. What I'm not fine with is corruption, the thin blue line, shooting first and asking questions later, qualified immunity, thinking every civilian is simply someone who hasn't committed a crime yet, using excessive force.
The police don't protect anyone but the law. https://mises.org/power-market... [mises.org].
They don't prevent crimes from happening, they show up afterward.
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Re:That headline triggers me (Score:4, Informative)
The headline triggers me too. Precedent has already established that the police can compel you to unlock your phone, just like they can compel you to turn over physical keys to any other evidence.
The huge problem here is buried in the second paragraph: police testified at trial that the defendant was uncooperative. That's hugely prejudicial. It contributes to none of the facts that must be proven in the case for the defendant to be guilty yet gives off the strong "something to hide" vibe that would improperly prejudice the jury.
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Compelling you to give your password is not settled. The current argument is it is a "foregon conclusion" that the information is on the phone, and that, therefore, no additional information is gained by you saying your password. Similar to giving up a key for a lock.
This case clearly violates that principle. If you can't hold the fact you said, and therefore knew, the password against you, then you can't hold that you didn't say it, either.
Refusing to participate in this foregone conclusion BS may be a
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Similar to giving up a key for a lock.
The difference being is that a key is a physical object that could be taken or searched for (or physically bypassed). A password is information known only to you. And what if police just assume you know the password to a particular device or website, even if you don't know or have forgotten it? There is no way to prove or disprove that you know that piece of information.
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True. But judges and lawmakers often do not live in the real world. They live in a simplified fantasy, usually to the detriment of the citizens.
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Similar to giving up a key for a lock.
The difference being is that a key is a physical object that could be taken or searched for (or physically bypassed). A password is information known only to you. And what if police just assume you know the password to a particular device or website, even if you don't know or have forgotten it? There is no way to prove or disprove that you know that piece of information.
Yes but...who doesn't actually know the passcode to their own phone? We aren't talking about some esoteric archive file someone saved years ago.
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The origin of the foregone conclusion doctrine is exactl
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This isn't a won battle, it's nonsense. These are statements of facts. First, they asked him to unlock his phone. Second, he refused. The prosecution is stating matters of fact directly relevant to the case.
This ruling won't withstand any reasonable court's opinion. And it's a moot point. They can just say "we were unable to examine the phone's contents due to being unable to decrypt it", and this of course tells the jury that he didn't agree to give the password.
It's a stupid fucking ruling.
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Please read above regarding the foregone conclusion doctrine. You are wrong.
so this can be used to beat DUI (Score:2)
so this can be used to beat DUI?
Demand an court order for an test and then clam an Fifth Amendment when they say you did refusal of the test
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Despite the modern technological context, this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him.
1) There is a difference in refusal of a test and refusing to answer a question. 2) The prosecution may not use the fact that you refused to answer questions as evidence of guilt. 3) The police in this case do not seek a court order much less get one as noted in the summary.
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Bullshit.
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Giving consent would be an answer to a question. So you just need to refuse to answer their question as opposed to refusing the test.
I have no idea what you are talking about. If you are asked questions, you answer that you will not answer.
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All states have implied consent [texascriminaljustice.com] when it comes to anyone who drives a vehicle. Sure, you can refuse a breathalyzer test, but that automatically triggers suspensions, fines, and possible jail time.
Re:so this can be used to beat DUI (Score:5, Informative)
Well...sort of.
In many states, you can readily refuse the field sobriety tests, and you should.
First, remember the golden rule for dealing who police interactions.
DO NOT TALK TO THE POLICE.
They are not there to help you, and if you are stopped for ANY reason, you are under suspicion and doing anything by talking, etc...does you no good.
If they suspect you are intoxicated, then nothing you do in the field will encourage them to let you go.
Doing any field sobriety tests, does nothing by help them to build a case against you. Don't even blow into the field test unit.
If they suspect you enough, they will arrest you and nothing you do can get you out of that.
You generally DO have to blow at the real unit downtown....and some states have a blood test.
Speak to a lawyer in your state first, as that they all differ, but in states I've lived in, lawyers tell me if you are going to blow DUI, it is best to refuse even the downtown test.
You will likely get suspended license, but you can still drive to work, get food, etc....get. a good lawyer and while it is a pain and $$...it is better than a full blown DWI on your record.
You generally won't get a 2nd chance like this if you get caught again.. Anyway, talk to a lawyer...it's always best to know the laws of your state before you become entangled in them.
But the most basic rule of all in ANY police interaction, be polite, don't run, but don't answer questions and try to speak as little as possible.
And when possible, ask if you are free to leave or if you are being detained.
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There's just one problem with that:
IT'S A LIE.
It's what the pigs want you to believe, of course. But it's absolutely NOT true. You still have the right to not incriminate yourself, and that absolutely includes refusing a chemical test unless the pigs get a warrant.
There are administrative penalties they can use against you for refusing, like suspending your license. But that's NOT a criminal penalty. You retain the right to refuse any chemical test without a warrant, and unless you're 100% certain you w
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A DUI test is physical evidence. They allow you to refuse, to be nice, and they may need a warrant for such an invasive thing. It has nothing to do with freedom of speech because alcohol in your blood is physical evidence. They could hold you down and take it if they wanted. Your assent has no implication to that status.
The password issue is based on the idea knowledge of the password gives no additional info for prosecution, as the government claims to know the info it needs is on there, and is yours,
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Fundamentally different and it is clear you know it. You are just arguing in bad faith.
SCOTUS already ruled you have to invoke that right (Score:5, Informative)
SCOTUS ruled in 2013 that you can't just remain silent, but that you must invoke that right. Salinas v. Texas
https://www.nolo.com/legal-enc... [nolo.com]
Re:SCOTUS already ruled you have to invoke that ri (Score:4, Insightful)
That was such a bogus decision.
Roberts is clearly dismantling all the protections provided to ordinary (not super-wealthy or in law enforcement) citizens, while throwing the occasional bone to liberals (ACA) to avoid too much comment about partisanship.
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That’s not a problem unless you fail to remain silent. Invoking the 5th, in theory, means the police have to stop questioning you.
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No they don't. They can keep on questioning you, until it becomes some flavor of cruel and unusual. They just can't expect an answer.
And I'm betting it's not even that simple. But staying silent is most always the best avenue. The cops, no matter which agency, are not your friend when they start asking questions.
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Then it'll be the lawyer telling them, not you. You're welcome.
Smarter minds then me will decide (Score:5, Interesting)
What if you answer no questions until a lawyer is present. Is this any different from not revealing your passcode?
I am not a lawyer, but I will be interested in seeing this decided. Non-guility people will benefit if this ruling stays in place in some form.
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They might say, "in police procedures, a warrant supersedes individual rights" or they might say, "individual Fifth Amendment rights s
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"except if there's definite evidence that you committed a very very serious crime, then the evidence is more powerful than the methods used to obtain it."
In other words, so "evidence acquired illegally is dismissed, unless it is important" ? Did I understand that right?
That, doesn't sound reasonable to me.
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"except if there's definite evidence that you committed a very very serious crime, then the evidence is more powerful than the methods used to obtain it."
In other words, so "evidence acquired illegally is dismissed, unless it is important" ? Did I understand that right?
That, doesn't sound reasonable to me.
Not so much, "unless it is important" (that's subjective argument for level of importance). It's more like, "unless the incriminating evidence confirms absolute breach of other person's individual sovereignty."
There are 2 points about this: incriminating evidence, and individual sovereignty. And it's crucial to remember how a recording device is viewed by the courts: they are objective observers/recorders of events... that's why authenticity of evidence is important, as is the overall acquisition method
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By a judge? No. By a jury? Probably. By the court of public opinion? Definitely!
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This is a tough one. Do we get convicted cause we do not help incriminate ourselves?
I'll just make my password, "I don't remember my password" ...
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Yeah, well, my phone's passphrase is "thass not my ph-phone". The drunken slur/stutter drives law enforcement officers nuts.
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Yup. There was a famous case a few years ago where someone, being casually questioned by FBI agents, asked them 'do I need a lawyer?'. They allegedly responded 'oh, no...'.
Never any discussion of whether this was a Miranda violation.
Yeah, if you have to ask, you need a lawyer. And even if you don't have to ask.
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Wow "along with the ACLU" (Score:3, Insightful)
I once was a supporter the ACLU back when they were legit.
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That video boils down to asking teachers to identify the person by their preferred gender. Why conservatives are obsessed with other peoples' genitals I'll never know. If someone wants to be him instead of her, great whatever makes them happy. It has no bearing on my life. This is about protecting fragile egos.
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Imagine if people could be punished for not calling the king "your majesty".
It kinda works like that with the Orange One who now lives in Florida.
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I think "compelled speech" would only apply if the teacher was forced to use words to refer to a transgender student that they wouldn't otherwise use to describe a cis student (of the same explicit or implicit gender), and only if using those words causes the teacher some kind of harm. Plus, misgendering someone can cause mental distress, financial loss, or even lead to violence or death (all it takes is one nutjob to hear "she's a he!" at the wrong moment).
As far as I'm concerned, each of us has the respo
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each of us has the responsibility as members of a functioning society to refer to our peers using the pronouns they prefer,
Hard no.
Speaking as someone who is transgender
Oh, so this is all about your own self-interest. You're willing to sacrifice the rights of others for your own benefit. Gross.
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You get the honor, under free speech, of saying things that piss people off, or cause them mental stress.
School regulations, forced by the feds who threaten to cut off substantial funding, is the constitutional argument for government control. Government claims the reason for that is stress caused to people, but that is not the mechanical mechanism of legal forcing being used. Cutting off of funds is.
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Times have changed and you have not. Conservatives have always disliked the ACLU for challenging police, government, and sticking up for those troublesome black people.
Pick your poison (Score:2)
Look at it this way: You're either going to get charged with kidnapping OR murder if the police don't get to the victim in time because you didn't want to help.
qualified immunity (Score:4, Informative)
With qualified immunity, the police can do whatever and then lie about it. Unless you have a recording, its your word against theirs and courts will side with cops every single time.
Its great that the EFF wants to stand up here, but unless there is compelling evidence or until qualified immunity goes away, cops can easily lie their way to what they want.
Re:qualified immunity (Score:5, Informative)
Even if this instance of over-reach is upheld, there are no consequences for the police, nothing to deter them from doing this over and over, nothing stopping them from outright lies on the stand. There are no repercussions for the authorities when they pull this shit.
Hope The State Loses (Score:4, Insightful)
I understand there will always be cases where someone maybe murdered a person or committed some crime, but for every case like that, there's probably thousands of cases where some cop pulls a person over and then decides to go on a warrantless and probable cause lacking fishing expedition of their phone for any evidence of other potential illegal activity.
We've already seen examples of this with the border agents who just decided all on their own that they can go snooping through your phone and laptop for no other reason than you were trying to enter the country through a legal port of entry. It's why I use a passcode instead of FaceID to unlock my phone, even though it can be inconvenient at times.
I guess this makes sense (Score:4, Insightful)
If you can't compel a password due to the 5th, and you can't reveal that they refused also because of the 5th, it seems pretty obvious that you shouldn't be able to reveal that they didn't want to give the password.
Do the smart thing (Score:3)
Don't store incriminating stuff on an easily broken device like a phone. Such stuff belongs into well secured storage.
Yes, officer (Score:2)
At the prompt, just enter FORMAT C:
What if your password is "I Plead the 5th" (Score:1)
...
They had nothing (Score:1)
This is BS. Here's the case - https://law.justia.com/cases/u... [justia.com] . I think there's no question he'd be found guilty even if they didn't say that. He did it. We know he did it. Put him in jail where he belongs.